Malawi: UN rights chief sounds alarm on sentencing of gay couple

21 May 2010  The sentencing of a gay couple in Malawi to 14 years in prison is “blatantly discriminatory,” the top United Nations human rights official said today, voicing concern over the precedent that this could set in the region.

“I am shocked and dismayed by the sentence and reports of the treatment of Steven Monjeza and Tiwonge Chimbalanga while in detention,” High Commissioner for Human Rights Navi Pillay said in a press release, calling for the repeal of their convictions and for penal codes criminalizing homosexuality to be reformed.

“The law which enabled the conviction dates back to the colonial era and has lain dormant for a number of years – rightly so, because it is discriminatory and has the effect of criminalizing and stigmatizing people based on perceptions of their identity,” she added.

Ms. Pillay cautioned that if this were to be replicated around the world, millions of people in consensual relationships would be criminalized and their privacy trampled on.

She stressed that laws criminalizing people based on their sexual orientation are discriminatory by nature and violate several international treaties, including the African Charter on Human and People’s Rights, which states that all people are entitled to the same rights and freedoms “without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.”

But such laws unfortunately exist in many countries around the world, the High Commissioner said.

More than 80 nations have legislation in place prohibiting same-sex behaviour.

“The trend should be towards getting rid of them, as is the case with other forms of discrimination,” the High Commissioner emphasized. “Instead, some countries, including Malawi, seem to be heading in the opposite direction.”

The case of Mr. Monjeza and Mr. Chimbalanga, Ms. Pillay noted, seems to have sparked a pronounced deterioration in both official and public attitudes in Malawi, not just towards people perceived as being homosexual but also towards organizations speaking about sexual orientation and related issues, including groups working to mitigate the impact of HIV and AIDS.

“I fear the reverberations of this decision, along with the recent attempt to bring in a new draconian bill aimed at homosexuals in Uganda, could have severe repercussions throughout the African continent,” she said.

Homosexuality is already criminalized through Uganda’s existing penal code, but the new bill under consideration by the country’s Parliament prohibits any form of sexual relations between people of the same sex, as well as the promotion or recognition of homosexual relations as a healthy or acceptable lifestyle in public institutions. The punishment for those found guilty under the law could be life imprisonment or even the death penalty.

The Malawian decision “will inevitably drive same-sex couples underground, and if this trend continues and spreads, not only will it mark a major setback to civil liberties, it could have a disastrous effect on the fight against HIV/AIDS,” the High Commissioner underlined.

The Joint UN Programme on HIV/AIDS (UNAIDS) also voiced its serious concern over the ruling and its potential impact to roll back gains made in responding to the disease.

The agency appealed to all governments to repeal laws prohibiting sexual acts between consenting adults in private and to enforce laws to protect men who have sex with men, lesbians and transgendered people from violence and discrimination.

Ms. Pillay dismissed the argument that non-discrimination against people on the grounds of sexual orientation is a cultural issue.

“It is a question of fundament rights, not one of geography, history or disparate cultures,” she stressed. “The protection of individuals against discrimination is pervasive in international human rights law. Why should it be suspended for this one group of human beings?”